January 2013 – Electronic Discovery Law

502(d) Order Provides Right to Claw Back “No Matter What the Circumstances” that Resulted in Production

Jan 31 2013

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Upon receipt of “dueling letters” concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized “the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,” but found that privilege was not waived because a Rule 502(d) order had been entered. Indeed, the court identified the “one decretal paragraph” that stated that “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….“ and concluded that, “[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.” (Emphasis added.)

Court Concludes Defendants’ Reliance on a Vendor to Accomplish Collections was “Insufficient”

Jan 25 2013

Peerless Indus., Inc. v. Crimson AV, LLC, No. 1:11-cv-1768, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013)

In this case, the court concluded that Defendants’ reliance on a vendor to accomplish collections from a non-party whose documents were in Defendants’ control was “insufficient” and granted Plaintiff’s motion for sanctions. Specifically, the court ordered Defendants to “show that they in fact searched for the requested documents and, if those documents no longer exist or cannot be located," to "specifically verify what it is they cannot produce” and ordered Plaintiff to submit its bill of costs related to preparation of the motion.

Fifth Circuit: “We conclude that the Stored Communications Act … does not apply to data stored in a personal cell phone.”

Jan 21 2013

Garcia v. City of Laredo, —F.3d—, 2012 WL 6176479 (5th Cir. Dec. 12, 2012)

On appeal, the Fifth Circuit affirmed the district court’s interpretation of the Stored Communications Act (“SCA”) and concluded that it does not apply to data stored in a personal cell phone.

Plaintiff was previously employed as a police dispatcher for the City of Laredo. On November 15, 2008, Plaintiff’s cell phone was removed from her unlocked locker by an officer’s wife who then shared its contents with the city’s deputy assistant city manger and the interim/assistant police chief because she believed that she had discovered evidence of Plaintiff’s violations of department policy. Later, investigators successfully downloaded one video recording and more than thirty digital images from Plaintiff’s phone, but were unable to download text messages. Following further investigation it was determined that Plaintiff had violated department rules and regulations and she was terminated from her employment.

Western District of Washington Amends Local Rules

Jan 17 2013

On December 1, 2012, newly amended rules went into effect in the Western District of Washington, including rules addressing electronic discovery. Notably, the new rules now require that parties contemplating discovery of electronically stored information consider adopting the newly promulgated Model Agreement Regarding Discovery of Electronically Stored Information in Civil Litigation—a fairly comprehensive order addressing many aspects of electronic discovery. Many other amendments were also adopted.

For a full copy of the newly adopted rules, click here.

For a copy of the new Model Agreement, click here.

On Remand, Court Finds Rambus’ Spoliation was in Bad Faith and Resulted in Prejudice, Holds Patents-in-suit Unenforceable Against Micron

Jan 10 2013

Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013)

Following remand from the Federal Circuit, the District Court considered the question of “whether Rambus acted in bad faith when it engaged in spoliation and the nature and extent of any prejudice suffered by Micron as a result . . . .” and found that “Rambus’ spoliation was done in bad faith, that the spoliation prejudiced Micron, and that the appropriate sanction [was] to declare the patents-in-suit unenforceable against Micron.”

Delaware Court of Chancery Amends Rules, Discovery Guidelines

Jan 09 2013

Effective January 1, 2013, the Delaware Court of Chancery has amended its rules “to account for modern discovery demands” and has “expanded its Guidelines for Practitioners,” originally released in January 2012. The Court’s press release summarizes the changes:

The Court of Chancery will amend its Rules regarding discovery, effective January 1, 2013. Rules 26, 30, 34 and 45 will be updated to account for modern discovery demands and will bring the Court’s rules in line with current practice. The amendments refer to discovery of “electronically stored information” (“ESI”) in addition to “documents” and “tangible things,” and explain how parties should respond to requests for ESI. These changes are consistent with similar amendments to the Federal Rules of Civil Procedure. Rule 26(c) also was revised to make clear that an out-of-state non-party from whom discovery is sought may move for a protective order in this state.

In addition to amendments to the Rules, the Court also has expanded its Guidelines for Practitioners, originally released in January 2012, to include guidelines regarding discovery. These guidelines explain the Court’s expectations regarding parties’ responsibility to confer early and often regarding discovery, including about electronic discovery procedures, the overall scope of discovery, preferred procedures for collection and review of discoverable material, including ESI, the privilege assertion process, and the role of Delaware counsel in the discovery process. The Court also developed guidelines for expedited discovery in advance of a preliminary injunction hearing. These new guidelines encourage communication among counsel and are intended to assist the Bar in developing reliable and transparent procedures for electronic discovery. The Court and its Rules Committee are hopeful that use of these guidelines will help avoid unnecessary and expensive disputes regarding the discovery process.

To read the full press release, or to access the new rules and guidelines, click here.

Citing General Counsel’s Willful Failure to Preserve and Other Violations, Court Orders Partial Default Judgment, an Adverse Inference Instruction & Monetary Sanctions

Jan 02 2013

Day v. LSI Corp., No. CIV 11-186-TUC-CKJ, 2012 WL 6674434 (D. Ariz. Dec. 20, 2012)

In this case arising from the alleged breach of an employment contract, discrimination, and related claims, the court found that Defendant was “at fault” for failing to preserve relevant evidence and imposed serious sanctions accordingly. Notably, the court’s analysis focused significantly on the actions of Defendant’s General Counsel, who the court found had “at least acted willfully” in his failure to preserve particular evidence, and also relied, in part, on Defendant’s failure to follow its own document retention policies.

Archive - January 2013